926 F.2d 902 (9th Cir. 1991), 89-70319, Leon-Hernandez v. United States I.N.S.

Docket Nº:89-70319.
Citation:926 F.2d 902
Party Name:Jose Ruben LEON-HERNANDEZ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:February 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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926 F.2d 902 (9th Cir. 1991)

Jose Ruben LEON-HERNANDEZ, Petitioner,

v.

U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70319.

United States Court of Appeals, Ninth Circuit

February 26, 1991

Argued and Submitted Nov. 5, 1990.

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Jan Joseph Bejar, San Diego, Cal., for petitioner.

Jill E. Zengler and Donald A. Couvillon, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges.

BEEZER, Circuit Judge:

This is a petition to review a decision of the Immigration and Naturalization Service (INS) ordering the petitioner deported on the ground that he was convicted of two crimes involving moral turpitude, and denying his application for suspension of deportation and voluntary departure. Because we agree that the acts for which petitioner was convicted do not arise out of a single scheme of criminal misconduct, we affirm the decision of the INS.

Jose Ruben Leon-Hernandez is a 38 year old native and citizen of Mexico. He entered the United States without inspection in 1975. In December 1982, Leon-Hernandez pleaded guilty to and was convicted of two counts of oral copulation with a person under the age of 16. The acts out of which the conviction arose occurred on September 18, 1981 and October 21, 1981. He was sentenced to consecutive prison terms, one of three years and the other of eight months. Leon-Hernandez was released from imprisonment in December, 1986.

On November 29, 1984, the INS issued an Order to Show Cause charging Leon-Hernandez with being deportable, pursuant to 8 U.S.C. Sec. 1251(a)(4), as a person who has been convicted of two crimes involving moral turpitude. At his deportation hearing in November 1985, the immigration judge rejected Leon-Hernandez's argument that his convictions were part of a single scheme of criminal conduct and held him ineligible for either suspension of deportation or voluntary departure. Leon-Hernandez appealed to the Board of Immigration Appeals, which dismissed his appeal on April 27, 1989. Leon-Hernandez petitions this court for review of the BIA's decision. We affirm.

I

An alien may be deported from the United States if, "at any time after entry [he] is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, ... regardless of whether the convictions were in a single trial." 8 U.S.C. Sec. 1251(a)(4) (1988). The INS must prove deportability by clear, convincing and unequivocal evidence. Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.1989). The burden in this case, therefore, is on the government to show

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that Leon-Hernandez's convictions do not arise out of a "single scheme of criminal misconduct." See Wood v. Hoy, 266 F.2d 825, 830 (9th Cir.1959).

The determination whether there was a single scheme of misconduct is a factual one. The...

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